Kokkia Inc. v. Microgear Technology Ltd and Another

HCMP 41/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 41 OF 2017

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BETWEEN

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REASONS FOR JUDGMENT

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INTRODUCTION

1.By the Originating Summons herein dated 6 January 2017, the plaintiff seeks an order for the committal of the 2^nd defendant for his failure to comply with a judgment of Deputy High Court Judge R Ismail SC dated 4 October 2016 (“the Judgment”) made in HCA 2669/2015 (“the Action”).  At the conclusion of the hearing on 24 August 2017, I made the following orders:-

(1) the 2^nd defendant be committed to prison for a period of 21 days; and

(2) the 2^nd defendant do pay the plaintiff’s costs of this application, to be taxed if not agreed on an indemnity basis,

with reasons to be given later, which I now do.

Basic facts

2.The parties hereto were also parties to the Action.  By paragraphs (7) to (9) of the Judgment, the court ordered the 2^nd defendant, within 14 days from the date of service of the Judgment, to:

(1) deliver up or, at the plaintiff’s option, destroy certain specified articles and materials in his possession, custody or control (paragraph (7));

(2) make and file an affidavit or affirmation and serve a copy on the plaintiff’s solicitors verifying that he has complied with paragraph (7) thereof and that he no longer has in his possession, power, custody or control any of the items required to be delivered up or destroyed pursuant to paragraph (7) (paragraph (8)); and

(3) make and file an affidavit or affirmation and serve a copy on the plaintiff’s solicitors setting forth, so far as is known to him, certain specified information (paragraph (9)).

3.A sealed copy of the Judgment, which was not endorsed with a penal notice, was served on Messrs Huen & Partners, the 2^nd defendant’s solicitors in the Action, on 18 October 2016.

4.The plaintiff’s complaint is that the 2^nd defendant failed to comply with the aforesaid paragraphs of the Judgment, despite repeated demands by the plaintiff, including letters dated 22 October 2016 and 21 November 2016 respectively from Messrs Keith Lam Lau & Chan, the plaintiff’s solicitors, to Messrs Huen & Partners.

5.On 28 December 2016, Anthony Chan J granted leave to the plaintiff to apply for an order of committal against the 2^nd defendant, subject to certain minor amendments being made to the Statement for Committal dated 9 December 2015.

6.On 6 January 2017, pursuant to the aforesaid leave granted by Anthony Chan J, the plaintiff issued the Originating Summons herein seeking an order of committal against the 2^nd defendant.

7.On 22 February 2017, Master K Lo made an order for substituted service of (inter alia) the Originating Summons, the Amended Statement for Committal dated 29 December 2016 and the 3^rd Affirmation of Kokkia Chew filed on 9 December 2016 in the Action, on the 2^nd defendant.  Substituted service of the aforesaid documents on the 2^nd defendant was effected by post on 28 March 2017.

8.Notice of the adjourned hearing of the Originating Summons, scheduled to take place on 24 August 2017, was given to the 2^nd defendant by post on 3 July 2017.

9.On 27 July 2017, this court made an order dispensing with the service of the Judgment endorsed with a penal notice on the 2^nd defendant pursuant to Order 45, rule 7(2) of the Rules of High Court, Cap 4A.

liability

10.Paragraphs (7) to (9) of the Judgment required the defendant to carry out certain act(s) and make and serve certain affidavits/affirmations within a specified period of time.  That the 2^nd defendant failed to comply with those paragraphs of the Judgment is clear on the plaintiff’s evidence contained in paragraph 6 of the 3^rd Affirmation of Kokkia Chew, as amplified in the Amended Statement for Committal.  The 2^nd defendant has not filed any evidence to refute the plaintiff’s allegation.

11.I am satisfied beyond reasonable doubt that the 2^nd defendant had proper notice of the Judgment but wilfully failed to comply with the Judgment with knowledge of its contents.  He was therefore in contempt of court.

Sanction

12.The 2^nd defendant did not appear at the hearing on 24 August 2017.  Neither did he offer any explanation for his failure to comply with the Judgment, or any facts or matters in mitigation.

13.In Winsome Paints Company Limited v Wong Yin Sun, HCMP 3185/2002 (14 November 2002), which concerned an application for an order of committal against a party for his failure to deliver up certain infringing items in a trademark case and to make and serve an affirmation, Deputy High Court Judge A Cheung (as he then was) said at paragraph 8 of his judgment the following:-

“A court order is made to be obeyed. This is a case in which a court order has been fragrantly disregarded. This cannot be condoned or lightly tolerated. In fact a strong message should be sent by the court to the public that all court orders must be duly, punctually and fully obeyed as ordered. This is important to the proper administration of justice in Hong Kong.”

14.In the result, the learned judge committed the contemnor to prison for a period of 21 days.  The same sentence was given in Brilliant Gain International Limited v Fu Kee, HCMP 2572/2009 (22 November 2010), by Deputy High Court Judge L Chan (as he then was) to a contemnor for his failure to provide a written itemised breakdown of certain funds to be verified on oath.

15.These having been said, as pointed out by the Court of Appeal in AXA China Region Insurance Company Limited v Li Yu Ping Ellen [2002] 3 HKC 339, at paragraph 58, there is no normal range of sentence for contempt of court.

16.In the present case, I consider the breach of the Judgment to be a serious one.  As earlier mentioned, the 2^nd defendant has not offered any mitigating factors for his breach of the Judgment.  I have not been able to discern any form the materials before me.  In all the circumstances, I consider that a sentence of imprisonment for 21 days would properly reflect the seriousness or gravity of the breach.  Accordingly, I make the order mentioned at the beginning of this judgment.

Mr Justin Lam, instructed by Keith Lam Lau & Chan, for the plaintiff

The 2^nd defendant, absent